A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT http://feeds.feedburner.com/Dilanblogspotcom

RSS FEED
ACLU
Andrew Sullivan
Attorney Shopping Links
Bag and Baggage
Ernie the Attorney
Eve Tushnet
Gail Davis
Gnosis
How Appealing
Legaline
Lehrer NewsHour
National Law Journal
National Review
New Republic
Slate
Spinsanity
Talking Points Memo
TAPPED
Virginia Postrel
Volokh Conspiracy
War Liberal

 
JANET JACKSON, FREE SPEECH, AND CHILDREN:
Bill Maher has a wonderful rant about how concern for "the children" is the worst thing in America. He's not really right, of course (and I don't think he really means everything he says about the subject-- he is, after all, a comedian). After all, there are some areas in which we could use more concern for children. Why, for instance, does Michael Jackson still have unsupervised custody of his children? And why is Cardinal Roger Mahony still Archbishop of Los Angeles, still a person who receives numerous honors, and still a power-broker in the city, after having abetted the rape of numerous young boys by covering up for priests who abused children and continuing to place them in positions where they would have access to potential victims?

But Maher has a point. Even issues that have nothing to do with "the children" have to be spun that way. It's no longer simply bad to run a budget deficit. It's borrowing from our children. And policies have to be geared towards children. Every Democratic candidate proposes to make health care universal for children-- as if it isn't just as important to secure health care coverage for adults.

And where concern for "the children" really threatens to destroy what this country is all about is in the area of free expression. Let's start with two premises that I think are unarguable but which most Americans either have forgotten or deliberately ignore:

1. All children (except perhaps, those who are brought up in very traditional conservative households or communes, with homeschooling, no TV, etc.) inevitably are exposed to a certain amount of "adult" expression, whether it is nudity, sexual innuendo, graphic violence, profanity, or sexual conduct, during their childhoods, and the vast majority of those children turn out to be reasonably productive, law-abiding adult citizens.

2. If adults were forced to exclude from their reading, viewing, and expressive activities anything that might be deemed "inappropriate" for children, in any situation where children might be present, viewing, or hearing, there would be very little space left in society for "adult" expression and such expression would be seriously chilled and threatened.

For those reasons, the US Supreme Court has consistently held that the government cannot, in most areas, censor speech for adults merely because some children might be exposed to it. For instance, the government can't keep porn off the internet, can't shut down phone sex outlets, can't pre-screen and censor movies, can't prevent drive-ins from showing movies with nudity in them (it was argued that passing children on the street would see the nude scenes), etc. (There is one narrow exception in broadcasting, which I will get to near the end of this post.)

Middle America, of course, was outraged that their children might have seen Janet Jackson's nipple two weeks ago. My first reaction is to say "big deal". I don't remember when I saw my first nipple other than my mother's, but I wasn't that old. And nipples aren't that harmful, really. They appear on television in other countries all the time, and children who see them turn out fine.

But more needs to be said, since Americans are now calling for the FCC to censor the networks, congressional hearings are being held, and all the rest. I think it is important to remind people that it is good that we live in a country where Janet can flash her breast on TV.

Why? Because people want to see it. TiVo reported that this was the most replayed footage ever since the device was invented. And it also produced one of the biggest internet search query ever.

So, everyone wants to see this nipple. Why shouldn't they be allowed to see it? Because of the children? But get a grip folks, seeing this nipple WON'T HARM A SINGLE CHILD. Whether or not the culture in general adversely affects kids (and I would remind people that in their day, parents thought the Beatles and Elvis and "satanic" heavy metal music would harm kids too), one nipple on the screen for less than 2 seconds is a blip on a very large radar screen. So, even if one believes that certain expression is harmful to minors and would justify denying people who would like to see it the opportunity to do so, this isn't that expression. (This, by the way, is why the FCC's power to regulate broadcast "indecency" has nothing to do with the Janet Jackson matter. That power was upheld in FCC v. Pacifica in the context of the broadcast of a George Carlin monologue replete with profanity. That broadcast could at least be argued to affect children in a way that a quick flash of a nipple could not. Additionally, the Supreme Court has refused every invitation to extend Pacifica beyond its facts.)

I happen to think that if people want to see something, they should be able to see it. But even if you don't think that the free market should decide what sort of expression is valuable, the further danger is that this will chill more serious expression. NBC has already deleted an 80 year old's naked breast from an episode of ER. I could imagine that if someone proposed a documentary on breast cancer, the networks might turn it down. Network television had already been criticized by a congressman for airing "Schindler's List" uncut, because the film contains nudity. Sorry folks, but the Nazis did force concentration camp prisoners to strip. That's reality.

This is the road we go down when we try to make all expression fit for children. Heck, one jurisdiction even tried to prosecute somebody for shouting expletives when something went wrong with his boat, because there were children present. Maybe it's bad form and bad manners to say "Oh, *%#" when something bad happens, but should someone really be fined or go to jail for reacting as anyone might to a mishap? And do we want people in stressful situations to have to be constantly censoring themselves if it will distract from the important tasks at hand. Personally, I'd rather the person on the boat worry about piloting the boat than following a stupid law relating to profanities.

The truth is, I think this society likes to congratulate itself on how much it cares for children precisely because we actually care disgracefully little about actual children. Children don't have health care coverage (as I said before, this isn't more important than the fact that adults don't have health care coverage, but it does nonetheless demonstrate that we don't give a damn about kids). Children are homeless. Children go to awful schools with weapons and drug dealing and torn up, 15 year old textbooks. While we spend millions of dollars on programs to prevent strangers from turning up at the playground to molest children, tens of thousands of American children are molested by close relatives and we do little about that. And we have done little about the Catholic Church's involvement in sex abuse, too.

We can feel good about ourselves being all outraged about Janet Jackson and CBS harming American children by showing them, ever so briefly, a nipple, precisely because it doesn't cost us anything. (Actually, it does cost us something, in terms of free speech, but the American people are blinded to that.) Doing something about those things I mentioned in the previous paragraph would cost us a lot. Of course, the other difference is that suppressing speech won't improve the life of one American child. Indeed, it will only make the future worse for American children-- by depriving them of the free society that should be their birthright.
posted by Dilan at 2:01 PM

 
DRAFT PAPER ON THE ROLE OF 'DUTY' IN TORT LAW:
For those of you interested in such things, I have co-authored a paper (with Professor Gregory Keating of USC Law School) on the role of "duty" in tort law. The link is here. Your comments are welcome.
posted by Dilan at 1:24 PM